Wise v. Wynn

• Decision Date: 10 May 1882
• Citation: 59 Miss. 588
• Court: Mississippi Supreme Court
• Parties: LEWELLEN WISE et al. v. H. H. WYNN

59 Miss. 588

LEWELLEN WISE et al. v. H. H. WYNN

Supreme Court of Mississippi

May 10, 1882

Appeal from the Circuit Court of Holmes County Hon. C. H. Campbell Judge.

Reversed and remanded.

T. K Weisiger, for the appellants.

1. The exception to the rule which excludes hearsay testimony in favor of the declarations of deceased members of a family made ante litem motam as to pedigree is well recognized, and under it the declarations are evidence of the facts. 2 Starkie Evid. 1099. This principle has been recognized in some of the earliest decisions of the courts of Virginia. Jenkins v. Tom, 1 Wash. 123; Claiborne v Parrish, 2 Wash. 146; Shelton v. Barbour, 2 Wash. 64; Pegram v. Isabell, 2 Hen. & Mun. 193; Gregory v. Baugh, 4 Rand. 611; Peake Evid. 11. It is believed that the principle has been uniformly acted on in the State courts and in the courts of the United States. All the conditions necessary to make such declarations admissible exist in this case.

2. Place can be proved by this character of evidence as a means of identifying the family, but not as an independent fact. Mima Queen v. Hepburn, 7 Cranch, 290; Davis v. Wood, 1 Wheat. 6; Shields v. Boucher, 1 De G. & Sm. 40; Adie v. Commonwealth, 25 Gratt. 712; Cuddy v. Brown, 78 Ill. 415; Moffit v. Witherspoon, 10 Ired. 185. The proof that Charles Wise had a brother named Thomas would be unavailing by itself. That brother must be identified in some way, and the identification becomes a necessary part of the proof of pedigree. This identification may be by proof of locality or place of residence, or description of the person, or in other ways. The declarations, then, as to the place of residence, tending to prove identity, constitute a part of the proof of pedigree. The English cases admit hearsay declarations to establish such facts as constitute proof of pedigree. Doe v. Pembroke, 11 East, 504; Zouch v. Waters, 12 Vin. Abr. 244. It has been laid down in some of the American cases that, while pedigree can be proved by declarations of deceased persons, no other specific fact can be so proved; but it will be found upon examination that the specific facts referred to were independent of the question of pedigree.

J. E. Gwin, on the same side.

Declarations like these are admissible in questions of pedigree, in order to identify the person or family. Isolated facts are useless. Either the evidence is admissible in an intelligible shape, or it is wholly incompetent. Its competency is well recognized. Spears v. Burton, 31 Miss. 547; Henderson v. Cargill, 31 Miss. 367; 1 Greenl. Evid. § 104. The principle warrants the admission of declarations made by a deceased person as to where his family came from, where he came from, and of what place his father was designated. Shields v. Boucher, 1 De G. & Sm. 40. That such evidence as was here offered is admissible is clearly shown by the decisions of Vaughan v. Phebe, 17 Am. Dec. 770; Chapman v. Chapman, 7 Am. Dec. 277; Birney v. Hann, 13 Am. Dec. 167. The court admitted the isolated fact that Charles Wise said that "he had a brother Thomas." How futile it is to allow this to be proved without showing where this brother Thomas lived, so as to identify him as the person spoken of. Under the peculiar circumstances of this case it is impossible to discover the heirs of Charles Wise, unless his statement as to who his relations are is taken. If any one should die and be buried in a foreign land, how is it possible to know where he is from, who his relations are, or where they live, except from his own claim of kindred? Is it probable that a man would invent a falsehood to enable strangers to inherit his estate? Declarations against his interest, made by Charles Wise, without the possibility of benefiting children of his own, are admissible to establish the claim of his brother's heirs to his property.

M. Green, for the appellee.

1. All Charles Wise's declarations should have been excluded. Relationship could not be so proved. At the foundation of their competency lies the proposition that the declarant must be a relative, and this must be proved dehors the declarations. As said in Monkton v. Attorney General, 2 Russ. & Myl. 147: "I entirely agree, that, in order to admit hearsay evidence in pedigree, you must, by evidence dehors the declarations, connect the person making them with the family."

2. The law resorts to hearsay evidence in cases of pedigree, upon the ground of the relationship of the declarants with the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. 1 Greenl. Evid. § 103. The cases cited by opposing counsel are all English. The doctrine is uniformly upheld in the United States that declarations as to place are not part of the family knowlledge of pedigree and are not admissible. Wilmington v. Burlington, 4

Pick. 174; Hall v. Mayo, 97 Mass. 416; Adams v. Swansea, 116 Mass. 591; Londonderry v. Andover, 28 Vt. 416; State v. Watters, 3 Ired. 455; Campau v. Dewey, 9 Mich. 381; Carter v. Buchanan, 9 Ga. 539; 1 Phil. Evid. 252, 253 note 93.

OPINION

CHALMERS, J.

More than forty years ago there came to Holmes County in this State a man calling himself Charles Wise. His parentage and past antecedents were wholly unknown, and except to a very few persons he seems to have preserved great reticence on these subjects. He lived in Holmes County continuously thereafter, until his death in 1870, and in the mean time accumulated a considerable landed estate. Dying intestate, unmarried, and without known heirs, his property after his death was by regular proceedings escheated to the State, and from the State subsequently purchased by the appellee, Wynn. Within the time limited by our statutes (Code 1880, § 892), this action has been brought for the recovery of the property by those who claim to be the heirs-at-law of the decedent.

They prove that they are the children of Thomas Wise, deceased, formerly a resident of a place known as "Hell's Corner," in Amelia County, Virginia, where the corners of three counties come together; that nearly fifty years ago their father had a younger brother named Charles, who having seduced a young lady of respectable family, fled the country to escape the vengeance of her relatives, and announced at the time, to an intimate friend, that he expected to go to Texas or Mississippi, and that he should take care that no one in Virginia should ever discover the place of his future home. The friend to whom this statement was made is still alive, and these facts are established by his testimony. From that time forth, until within a short time before the bringing of this suit, nothing was ever heard in Virginia of the subsequent career of Charles Wise. Having made this proof, the plaintiffs proposed to prove by two witnesses, living in Holmes County, that the man known there as Charles Wise, and whose estate is involved in this litigation, told them that he came from a place in Virginia known as "Hell's Corner," where the corners of three counties came together, that he had there a brother named Thomas, and that he had left there because of some trouble about a woman. The whole of this proffered testimony was excluded by the court below, except the isolated statement of the deceased that he had a brother named Thomas, the witnesses not even being allowed to state that the deceased had said that his brother Thomas lived in Virginia, or that he himself came from that State.

This ruling of the learned judge was based upon the dicta of many authorities to the effect, that while in questions...